Affirmative Action and the Supreme Court

The Supreme Court dramatically changed the implementation of Section 8(a) of the Small Business Act, which requires a minimum of federal contracts with disadvantaged business enterprises (DBE) in Adarand Constructors, Inc. v. Pena, 115 S.Ct. 2097 (1995). The Small Business Act is the basis for the federal government's affirmative action program to provide support to socially and economically disadvantaged business. Under the act, members of one of the specified racial or ethnic groups are presumed to be socially and economically disadvantaged business enterprises or DBE. Thus, these groups need not show that in fact, they are disadvantaged. The support is given in the form of preferences and set-asides in contracts awarded by the federal government. These set-asides form much of the basis of affirmative action programs in the public sector at the federal level.

In Adarand, the majority of the U.S. Supreme Court decided that the use of racial preferences to award government contracts is prohibited unless there is a compelling government interest and the measures are narrowly tailored to meet specific goals. The practical effect of this was to make it significantly more difficult for federal

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implemented by state and local governments. Under the strict scrutiny standard laid down by the Supreme Court, any race-based program is unconstitutional unless it serves a "compelling government interest" and is "narrowly tailored" to serve that interest. The Supreme Court in Adarand further stated that in order to show a compelling government interest for the race-based program, the government must show significant statistical disparities between the level of minority participation in a particular industry or field and the percentage of qualified minorities in the applicable pool, and must link any statistical disparities to actual racial discrimination. Thus, the Supreme Court made clear that justification for these types of remediation measures cannot be predicated on amorphous claims of generalized past discrimination. Effectively, it would no longer be presumed that there were inequities in the social and economic areas just because one was a member of a particular race or ethnic group; there must now be established a factual basis that an inequity exists in order to remedy that situation by affirmative action. Minority Opinion Justices Stevens, Souter and Ginsburg dissented from the majority opinion. The minority opin
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Approximate Word count = 1252
Approximate Pages = 5 (250 words per page)